Citation NR: 9719097
Decision Date: 05/30/97 Archive Date: 06/04/97
DOCKET NO. 96-03 598 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUES
1. Whether new and material evidence has been received
sufficient to reopen the veteran's claim for entitlement to
service connection for unilateral hearing loss in the left
ear.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. W. Chambers, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1963 to
October 1967.
This matter came before the Board of Veterans’ Appeals
(Board) from a May 1995 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Newark, New
Jersey which established service connection for residuals of
herpes zoster with a noncompensable evaluation, denied the
veteran's claim for entitlement to service connection for
tinnitus, and determined that new and material evidence had
not been received sufficient to reopen the veteran's claim
for entitlement to service connection for unilateral hearing
loss in the left ear. In August 1995, a notice of
disagreement was received on the issues of entitlement to
service connection for tinnitus, and the sufficiency of new
and material evidence regarding the claim for entitlement to
service connection for hearing loss. The statement of the
case was issued in October 1995. A substantive appeal
addressing these issues was received in December 1995.
Additionally, during the course of this appeal, the veteran
has raised an issue relating to entitlement to service
connection for unilateral hearing loss of the right ear. As
this issue is not currently in appellate status it is
referred to the RO for any action deemed appropriate.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative contend, in substance,
that new and material evidence is of record sufficient to
reopen the veteran's claim for entitlement to service
connection for unilateral hearing loss in the left ear, and
that the veteran incurred tinnitus during military service
either as a result of acoustic trauma from gunfire, or as a
result of inservice herpes zoster.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
new and material evidence has not been presented sufficient
to reopen the claim for entitlement to service connection for
unilateral hearing loss in the left ear, and that the
evidence supports the claim for service connection for
tinnitus.
FINDINGS OF FACT
1. In an August 1971 rating decision, service connection was
denied for unilateral hearing loss in the left ear.
2. The evidence associated with the record or submitted
pursuant to the veteran’s attempt to reopen his claim for
entitlement to service connection for unilateral hearing loss
in the left ear is not probative of the underlying issue at
hand, is partly cumulative or duplicative of evidence
previously considered, and does not raise a reasonable
possibility of changing the outcome of the claim.
3. The veteran’s duties during his approximately four years
of service, which ended in October 1967, included working as
an assistant gunner, a gunner, a machine-gun gunner, and a
machine-gun squad leader.
4. The service medical records show complaints of tinnitus
in August 1967.
5. The post-service medical evidence shows current bilateral
tinnitus.
6. The veteran’s bilateral tinnitus is due to his exposure
to acoustic trauma while on active duty.
CONCLUSIONS OF LAW
1. The August 1971 determination by the RO denying
entitlement to service connection for unilateral hearing loss
in the left ear was not appealed and the determination is
final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104(a)
(1996).
2. Evidence submitted since the RO denied entitlement to
service connection for unilateral hearing loss in the left
ear is not new and material and, thus, the veteran's claim is
not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§ 3.156(a) (1996).
3. Bilateral tinnitus was incurred in active service.
38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991); 38 C.F.R.
§ 3.303 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. New and Material Evidence
The veteran contends that he has presented new and material
evidence sufficient to reopen his claim for service
connection for unilateral hearing loss in the left ear.
Initially, the Board notes that in an August 1971 rating
decision, the RO denied the veteran's claim for entitlement
to service connection for unilateral hearing loss in the left
ear as no current hearing loss disability was shown.
The Board notes that for the purposes of applying the laws
administered by VA, impaired hearing is only considered to be
a disability when the auditory threshold in any of the
frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40
decibels or greater; or when the auditory thresholds for at
least three of the frequencies 500, 1000, 2000, 3000, or 4000
Hertz are 26 decibels or greater; or when speech recognition
scores using the Maryland CNC Test are less than 94 percent.
38 C.F.R.§ 3.385 (1996).
The evidence of record at the time of the decision consisted
of the following items: the veteran’s service medical
records, personal statements, and a VA compensation and
pension examination performed in June and July 1971. The
service medical records indicate that in August 1967, the
veteran reported hearing loss in his left ear, as well as
occasional tinnitus. On examination in August 1967, the
examiner indicated a diagnostic impression of high frequency
hearing loss on the left and generalized hearing loss on the
right. The veteran was given two audiological examinations
at Bethesda Naval Hospital, in early and late September 1967.
In the latter of these examinations, the examiner noted,
“[t]he examination today shows a definite improvement in the
hearing and it is now recorded at essentially normal levels.”
In the audiological evaluation in late September 1967, pure
tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
10
10
10
LEFT
10
10
10
15
10
On separation examination in September 1967, the veteran's
hearing was listed as normal.
On the authorized VA audiological evaluation in June 1971,
pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
-5
0
0
15
LEFT
5
-5
-5
-10
20
Speech audiometry revealed speech recognition ability of 96
percent in the right ear and of 100 percent in the left ear.
The examiner indicated a diagnosis of normal hearing.
As the veteran did not appeal the August 1971 rating
decision, the decision is final based on the evidence then of
record. However, the law and regulations provide that if new
and material evidence has been presented or secured with
respect to a claim which has been disallowed, the claim may
be reopened and the former disposition reviewed. 38 U.S.C.A.
§§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1996).
The Court has established a two-step analysis which must be
applied in cases in which a claimant seeks to reopen a claim
which has become final. First, there must be a determination
as to whether there is new and material evidence to reopen
the claim. If there is such evidence, the claim must be
reviewed on the basis of all of the evidence, both old and
new. Manio v. Derwinski, 1 Vet.App. 140 (1991). The Court
has defined “new” evidence as evidence which is neither
cumulative nor redundant and “material” evidence as that
which is relevant and probative as to the issue presented.
Colvin v. Derwinski, 1 Vet.App. 171 (1991). Moreover, the
additional evidence must provide a reasonable possibility of
changing the outcome when viewed in the context of all of the
evidence, new and old. Smith v. Derwinski, 1 Vet.App. 178
(1991). Finally, if the evidence is found to be new and
material under these guidelines, the claim is reopened and
the Board must evaluate the merits of the veteran's claim in
light of all of the evidence.
The Court has recently stated that in order to warrant
reopening a previously and finally disallowed claim, the
newly presented or secured evidence must not be cumulative of
evidence of record at the time of the last prior final
disallowance and must tend to prove the merits of the claim
as to each essential element that was a specified basis for
that last final disallowance of the claim. In determining
whether evidence is thus probative (that is, whether it
supplies evidence the absence of which was a specified basis
for the last final disallowance), the specified basis or
bases, as discernible from that last decision, for the
disallowance must be considered. If the newly presented
evidence is both new and probative, then, the claim will be
reopened if, upon consideration of all the evidence (both new
and old), there is a reasonable possibility that the outcome
would be changed. Evans v. Brown, 9 Vet.App. 273 (1996),
citing Struck v. Brown, 9 Vet.App. 145, 151 (1996); Blackburn
v. Brown, 8 Vet.App. 97, 102 (1995), Glynn v. Brown, 6
Vet.App. 523, 528-29 (1994), Cox (Billy) v. Brown, 5 Vet.App.
95, 98 (1993), and Colvin at 174.
The Court has stated that 38 U.S.C.A. §§ 5108, 7104(b), and
7105(c) require that in order to reopen a previously and
finally disallowed claim (whether decided by the Board or an
RO) there must be new and material evidence presented or
secured (that is, present in the claims file, in fact or
constructively, or having been submitted to VA by or on
behalf of the claimant) since the time that the claim was
finally disallowed on any basis, not only since the time that
the claim was last disallowed on the merits. Evans, citing
Bell v. Derwinski, 2 Vet.App. 611 (1992).
Therefore, in assessing the sufficiency of the additional
evidence for purposes of reopening a claim, a critical
examination of all the evidence of record is necessary,
particularly for determining the “materiality” of such
evidence. The Court has stated that the credibility of new
evidence is to be presumed for these purposes. Therefore, if
such evidence presents a reasonable possibility of changing
the outcome, then the claim is reopened. Thus, the ultimate
credibility or weight to be accorded such evidence must be
determined as a question of fact. Justus v. Principi, 3
Vet.App. 510 (1992). Under the applicable law, a veteran is
entitled to service connection for a disease or injury
incurred in or aggravated while in service. 38 U.S.C.A.
§§ 1110, 1131 (West 1991).
In the present case, the veteran attempted to reopen his
claim for entitlement to service connection for unilateral
hearing loss in the left ear and argues that that he has
current hearing loss in his left ear which is related to
inservice acoustic trauma and to his service-connected herpes
zoster. Additional evidence related to this claim which has
been associated with the record following the August 1971
decision consists of personal statements, inservice personnel
records, a January 1990 VA examination including an
audiological evaluation, and a September 1994 VA audiological
evaluation.
The personal statements provided by the veteran which assert
inservice incurrence of a unilateral hearing loss in the left
ear are essentially duplicative or cumulative of evidence
previously considered in the decision dated in August 1971,
and as such are not “new evidence” under Colvin. Since this
evidence is not new, and fails the first prong of the Colvin
test, it is not necessary to reach the second prong of the
test, which is materiality.
The personal statements provided by the veteran which assert
incurrence of unilateral hearing loss in the left ear as a
result of service-connected herpes zoster, the inservice
personnel records, the January 1990 VA examination including
an audiological evaluation, and the September 1994 VA
audiological evaluation are not essentially duplicative or
cumulative of evidence previously considered in the decision
dated in August 1971, and are considered “new evidence” under
Colvin.
The personal statements provided by the veteran which assert
incurrence of unilateral hearing loss in the left ear as a
result of service-connected herpes zoster are relevant in
that they tend to indicate the inservice incurrence of a
unilateral hearing loss in the left ear. However, the
personal statements are unsupported by any competent medical
evidence associated with the record, and the Court has stated
that lay assertions of medical diagnosis or causation do not
constitute competent evidence. Grottveit v. Brown,
5 Vet.App. 91, 93 (1992); Espiritu v. Derwinski, 2 Vet.App.
492, 495 (1992). Although the statements are relevant, they
are not probative evidence under Colvin, and therefore are
not material evidence.
The inservice personnel records are relevant evidence in that
they tend to indicate that the veteran was exposed to
acoustic trauma as a gunner during military service.
However, as required by Colvin and Evans, the records do not
tend to prove the merits of the claim as to the incurrence of
a unilateral hearing loss disability in the left ear in
service, which was the basis for the last prior final
disallowance of the veteran’s claim in August 1971. As this
evidence does not demonstrate that the veteran had a hearing
loss disability of the left ear, as defined by 38 C.F.R.
§ 3.385 (1996), upon separation from service, this evidence
is not “material” evidence. Thus, under Smith and Evans,
this evidence does not provide a reasonable possibility of
changing the outcome when viewed in the context of all the
evidence, new and old.
The January 1990 VA examination including an audiological
evaluation, and the September 1994 VA audiological evaluation
are relevant evidence, in that they tend to demonstrate the
existence of current hearing loss. However, as required by
Colvin and Evans, the examination reports do not tend to
prove the merits of the claim as to the incurrence of a
unilateral hearing loss disability in the left ear in
service, which was the basis for the last prior final
disallowance of the veteran’s claim in August 1971. As such,
this evidence is not “material” evidence. Thus, under Smith
and Evans, this evidence does not provide a reasonable
possibility of changing the outcome when viewed in the
context of all the evidence, new and old.
At this stage in the adjudication process, the legal and
evidentiary burdens are specific. Therefore, since the
personal statements, inservice personnel records, the January
1990 VA examination including an audiological evaluation, and
the September 1994 VA audiological evaluation, in concert
with all previously considered evidence, do not raise the
reasonable possibility of changing the prior decision, the
Board finds that the evidence associated with the record
following the August 1971 rating decision, is not new and
material evidence as set forth by the Court and within the
applicable legal criteria. 38 U.S.C.A. §§ 5108, 7105 (West
1991); 38 C.F.R. § 3.156(a) (1996). As such, the claim may
not be reopened.
II. Entitlement to Service Connection for Tinnitus
The law provides that “a person who submits a claim for
benefits under a law administered by the Secretary shall have
the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded.” 38 U.S.C.A. § 5107(a) (West). Establishing
a well-grounded claim for service connection for a particular
disability requires more than an allegation that the
disability had its onset in service or is service connected;
it requires evidence relevant to the requirements for service
connection and of sufficient weight to make the claim
plausible and capable of substantiation. See Franko v.
Brown, 4 Vet.App. 502, 505 (1993); Tirpak v. Derwinski, 2
Vet.App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet.App. 78,
81 (1990). The kind of evidence needed to make a claim well
grounded depends upon the types of issues presented by a
claim. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). For
some factual issues, competent lay evidence may be
sufficient. However, where the claim involves issues of
medical fact, such as medical causation or medical diagnoses,
competent medical evidence is required. Id. at 93.
Service connection may be established for a current
disability in several ways, including on a "direct" basis, on
the basis of "aggravation," and on a "secondary" basis. 38
U.S.C.A. §§ 101(16), 1131, 1153 (West 1991); 38 C.F.R. §§
3.303, 3.304(a), (b), (c), 3.306(a), (b), 3.310(a) (1996).
Direct service connection may be established for a disability
resulting from diseases or injuries which are clearly present
in service or for a disease diagnosed after discharge from
service, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(a), (b), (d) (1996).
The veteran served on active duty from October 1963 to
October 1967. His military specialties included assistant
gunner, gunner, machine-gun gunner, and machine-gun squad
leader. The service medical records associated with the file
indicate that in August 1967, as noted above, the veteran
reported hearing loss in his left ear, as well as occasional
tinnitus. He stated that one month previously, he had pain
and ringing in his left ear, but that his right ear felt
normal. In a subsequent consultation request in August 1967,
the examiner noted that the veteran reported that he was
“around a lot of firing” and experienced occasional tinnitus.
On examination in September 1967, the examiner noted that the
consulting otolaryngological examiner recommended that the
veteran avoid gunfire for a month. In a subsequent
consultation report, the examiner stated that no treatment
was indicated other than avoiding acoustic trauma in the
future. On separation examination in September 1967, the
veteran's ears, eardrums, and hearing were listed as normal.
On VA audiological examination in June 1971, the veteran did
not report tinnitus and a diagnosis of tinnitus was not
indicated. Likewise there were neither complaints nor
findings of tinnitus in the January 1990 VA audiological
examination. In the September 1994 VA audiological
evaluation, bilateral tinnitus was indicated.
The veteran provided personal statements that during service,
he incurred shingles (herpes zoster) in his left ear and in
the surrounding area and was also exposed to rifle fire. He
asserts that the herpes zoster damaged the “nerve and the
biochemical actions,” resulting in hearing loss and tinnitus
since that time. He also contends that he had tinnitus upon
separation but did not inform the examining physician at the
time because he had been told that his tinnitus was
temporary.
The veteran asserts that service connection should be
established for tinnitus as this disability developed in
service. His claim for service connection for tinnitus is
well grounded, meaning it is plausible. 38 U.S.C.A. §
5107(a).
The Board finds that the veteran's statements regarding a
causal link between his herpes zoster and his tinnitus are
not competent medical evidence, for although an individual
may be able to provide accurate statements regarding
firsthand knowledge of events or observations, a lay person
may not offer evidence that requires medical knowledge.
Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992)
The service medical records are negative for a diagnosis of
tinnitus. However, the veteran complained of tinnitus during
service, and a review of the evidence associated with the
file indicates that the veteran was exposed to acoustic
trauma during military service. The first post-separation
medical examination associated with the file indicating
complaints or findings of tinnitus is dated in September
1994, twenty-seven years after separation from service.
When the evidence is in relative equipoise as to the merits
of the issue, then the benefit of the doubt in resolving the
issue is to be given to the veteran. 38 U.S.C.A. § 5107(b)
(West 1991); 38 C.F.R. § 3.102 (1996). Gilbert v. Derwinski,
1 Vet.App. 49, 55 (1990). The Board finds that there is at
least a reasonable doubt as to whether the veteran’s
bilateral tinnitus was incurred during active service.
The Board finds that the foregoing evidence raises a
reasonable doubt with regard to the cause-and-effect
relationship between the veteran’s inservice acoustic trauma
and his current tinnitus. 38 C.F.R. § 3.102 (1996).
Accordingly, the Board concludes that service connection is
warranted for tinnitus.
ORDER
New and material evidence not having been submitted
sufficient to reopen the veteran's claim for entitlement to
service connection for unilateral hearing loss in the left
ear, this claim is not reopened and the appeal on this issue
is denied.
Service connection for tinnitus is granted.
RICHARD D. TURANO
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
Supp. 1996), a decision of the Board of Veterans’ Appeals
granting less than the complete benefit, or benefits, sought
on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402 (1988). The date that appears on the
face of this decision constitutes the date of mailing and the
copy of this decision that you have received is your notice
of the action taken on your appeal by the Board of Veterans’
Appeals.
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